That’s according to internal documents obtained recently by  The New York Times, via the Senate Committee on Commerce, Science and Transportation. Legislators say this points to a pattern of lies by the company – even well after the seriousness of the airbag defect issue was widely known.

Testing at issue involved a newer component design. Although it did not go into production, as it was considered experimental, engineers at the North American branch of the firm said they were under intense pressure from headquarters to move forward with this new design, even as they staunchly believed it was most likely to fail. 

These latest documents are part of a growing collection that have become public, showing employees were conceding the manufacturing processes were inferior and the test data was manipulated. Some seemed to be trying to draw attention to these problems.

These revelations came on the heels of speculation that as many as 90 million additional Takata airbag inflators could face recall in the U.S. Reuters reported that would quadruple the number of inflators recalled, following 10 deaths and hundreds of reported injuries.

An estimated 29 million of these defective airbags have so far been recalled, with some vehicles having multiple defective airbags. The company made between 260 and 285 million airbags with ammonium-nitrate-based inflators and marketed them around the world between 2000 and 2015. Nearly half of those are in U.S. vehicles, and it’s not clear at this point which of those may be defective. That’s why there is speculation that another 90 million cars are going to be recalled.

As our Montgomery product liability lawyers know, the problem is these devices, when deployed, fling shards of metal and other objects at rapid speeds directly into the faces and chests of drivers and front seat passengers. Vehicles in the Southern U.S. in particular are believed to be at risk because exposure to extended periods of high heat is thought to exacerbate the problem.

Honda was the single biggest client of Takata’s, and the company actually owns a minority stake in the airbag maker. Honda has recalled 8 million defective inflators in the U.S.

Many of these defective airbags are still being used because the manufacturers haven’t been able to keep up with the demand for replacement.

In the meantime, U.S. regulators fined Takata $70 million for repeatedly delaying recalls despite valid information these parts were not safe for consumers.

A number of personal injury and wrongful death lawsuits have been filed by victims and families of those who were killed, alleging Takata was negligent in making a product that was unreasonably dangerous, failed to warn consumers about the risk and actively concealed the danger from the public.

These newly-uncovered internal documents, indicating the company was well aware of potential safety problems long before recalls were issued and federal regulators were notified, will further bolster those cases, as well as any future lawsuits. The records may also be used in the pursuit of punitive damages, intended to deter or reform defendant and others from engaging in the same or similar conduct.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Takata Faked Test Data a Year After Airbag Recalls, Report Says, Feb. 23, 2016, By Stacy Cowley, The New York Times

More Blog Entries:

Cisson v. C.R. Bard – $2 Million Product Liability Verdict Upheld, Jan. 24, 2016, Montgomery Injury Attorney Blog

Prosecutors say he was “fixated” on his smartphone at the time of the wreck. AL.com reports that in the 1 hour 25 minutes before the crash – the whole time of which he was driving – defendant reportedly checked instant messages, looked at dating site profiles, accessed Facebook and Twitter and updated his own dating site profile. The last time he accessed his phone, records show, was 32 seconds before the 911 call about the wreck.

This kind of situation is not uncommon. The U.S. Centers for Disease Control and Prevention (CDC) reports every single day in this country, 9 people die and another 1,153 are seriously injured in distracted driving crashes. And yet, last year when the Alabama legislature had the chance to expand its anti-texting law to encompass other forms of driving distraction, it declined to do so. The bill would have banned not just texting, but personal grooming, reading, writing, interacting with pets or engaging in any action that prevents a driver from devoting necessary attention to driving.

But, there is some good news, auto manufacturers are taking action. In a study conducted by the Insurance Institute for Highway Safety (IIHS), vehicles equipped with front-end crash prevention are far less likely to rear-end other vehicles. Rear-end collisions in Alabama are among the most common types of distracted driving crashes. 

The study found that systems with automatic braking slashed rear-end crashes by, on average, as much as 40 percent. Systems with just forward collision warnings reduced rear-end crashes by 23 percent.

What’s more, even when crashes weren’t prevented, the auto-brake system was associated with injuries that were less severe. That’s likely because drivers who are warned even seconds ahead of time have the advantage of reducing speed. Even dropping 10- or 15-mph can make a huge difference upon impact.

The institute surmised that if all vehicles came standard with this technology, there would be a reduction of some 700,000 police-reported rear-end crashes each year. That means we’d have 13 percent fewer overall police-reported crashes.

Study authors say as this technology becomes more widespread, we can anticipate markedly less crashes on our roads.

This is good news, especially considering crash statistics have spiked recently. The National Safety Council reported there was a 28 percent surge in fatal motor vehicle accidents in 2015 compared to 2014 – the single largest year-over-year increase in 50 years. In total, 38,300 people were killed and another 4.4 million were seriously injured. Experts have attributed this largely to cheap gas prices and higher employment.

At this point, any reduction on fatal motor vehicle accidents is most welcome.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Crashes Avoided: Front crash prevention slashes police-reported rear-end crashes, Jan. 28, 2016, IIHS

Texting and driving manslaughter case ends in guilty verdict, Feb. 22, 2016, By Lawrence Specker, AL.com

More Blog Entries:

Gores v. Miller – Car Accident Settlement Release, Feb. 20, 2016, Montgomery Car Accident Lawyer Blog

That’s a problem especially for children, who with a lower dose of the mineral could be at greater risk of developing cavities.

Qualitest is the biggest manufacturer of multivitamin-with-fluoride tablets, and the alleged mislabeling occurred between October 2007 and August 2013. The settlement is the result of a qui tam or “whistleblower” lawsuit filed three years ago by a Florida dentist who discovered the problem. 

The American Academy of Pediatrics and the American Dental Association have set certain recommended levels of fluoride in drinking water to help prevent tooth decay, especially for children. Both organizations had recommended that in areas where fluoride levels in drinking water were insufficient, parents give their children vitamins that contained fluoride.

As the New Jersey Attorney General stated upon announcement of the settlement, these kinds of mislabeling actions affect us all. It causes unnecessary pain and suffering to children and their families, but it also taxes the health insurance and health care systems.

Qualitest is headquartered in Huntsville, and is owned by larger firm Endo Pharmaceuticals, which is based in Dublin, Ireland.

This is not the first time the Alabama company has come under fire. Late last year, more than 100 women in 28 states filed lawsuits seeking millions in damages after birth control pills made by the company were packaged in the wrong order, reversing the weekly tablet orientation. That mistake meant the women were taking the placebo sugar pills – intended for the week of menstruation – at the incorrect time of the month. In turn, this left them without adequate contraception, and the result was they became pregnant.

The error occurred in September 2011, and the company issued a recall, and downplayed the number of women affected as “very small.” But 113 women have so far said they became pregnant when they did not want to after thinking they were using adequate birth control protection.

These kinds of product liability lawsuits against this firm appear indicative of larger quality control problems. Holding pharmaceutical companies accountable can be challenging, but an experienced attorney can help.

From a broad social perspective, pharmaceutical companies have a duty to supply patients with good drugs at reasonable prices and to provide reliable information on those drugs.

Specifically, drug companies have a duty to appropriately test medications and drugs before releasing them onto the market. They also have a duty to warn of known (or reasonably knowable) side effects of a certain drug. Although there are some situations in which a drug is unavoidably unsafe – no matter how carefully it is made – it may still get the U.S. Food & Drug Administration green light if there are benefits to the user, as long as the drug is adequately labeled.

When a drug manufacturer fails in its duty to properly label medications or warn of the negative effects, they can be held liable for the resulting damage.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

AG: NJ to Receive $2.7 Million from Settlement with Drug Maker, Jan. 19, 2016, PolitickerNJ

More Blog Entries:

Cisson v. C.R. Bard – $2 Million Product Liability Verdict Upheld, Jan. 24, 2016, Montgomery Injury Lawyer Blog

Even if you have no intention of taking your case to court, you will need an experienced injury lawyer to help walk you through this process. One of the many reasons is the language of that settlement agreement can contain a few costly pitfalls.

That was the case in the recent medical malpractice lawsuit of Gores v. Miller, which was filed subsequent to a car accident settlement signed on behalf of an injured 15-year-old girl. 

This was a case in South Dakota, but the same basic legal principles are applicable here in Alabama.

Court records in the Gores case reveal it started with a teen driver car accident in a rural area. A 17-year-old boy was behind the wheel and plaintiff’s 15-year-old daughter was in the passenger seat. The vehicle, a van, belonged to the boy’s mother and was insured by her insurance policy.

As a result of the crash, the girl sustained serious injuries, in particular lacerations to her arm. She was rushed to the hospital emergency room, where a doctor recommended skin grafts.

It took the girl months, another skin graft operation and further treatments before she was considered fully recovered.

Nearly a year after the crash, the girl’s mother, as the court-appointed conservator for the girl, filed a lawsuit on her behalf against the teen driver and his mother. (Auto insurance companies aren’t named in initial actions, and are only added later if they refuse to pay.)

Ultimately, the case did not go to court. Both sides settled with the driver’s mother’s insurance policy for the policy limit of $25,000. Of course, this wasn’t near enough to cover the full cost of medical bills and other expenses, but luckily, plaintiff had her own underinsured motorist coverage. In total, she was able to collect $100,000.

As part of that settlement, plaintiff signed a broad but unambiguous release. The language of that liability release indicated the plaintiff forever discharged not only the driver, the driver’s mother, and her insurance company, but “all other persons, firms or corporations liable or who might be claimed liable” for any lawsuits of any nature whatsoever which resulted or might develop in the future from the crash.

Plaintiff’s mother signed. However, she did not realize – and probably never intended – to release from liability the doctors who treated her daughter after the crash. But that is effectively what she had done.

When plaintiff then sought legal action against the doctor, alleging he had negligently conducted the skin graft and failed to inform her daughter how best to care for the wound, the doctor used that settlement agreement.

But this was a separate action, plaintiff argued, and she never intended to release individuals from wholly separate acts. But the trial court sided with defendant, and so too ultimately did the South Dakota Supreme Court. The settlement was binding, and because the language of the contract was clear, plaintiff’s subjective intent didn’t matter.

This is why we recommend car accident victims be exceedingly cautious with these settlements because failure to do so can have unintended consequences.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Gores v. Miller, Feb. 3, 2016, South Dakota Supreme Court

More Blog Entries:

Burgueno v. Univ. of Calif. – Liability for Fatal Bike Accident, Jan. 31, 2016, Montgomery Car Accident Lawyer Blog

Generally, third parties have no duty or obligation to prevent criminal actions of other people. There are exceptions, however, for property owners who have actual or constructive notice of a pattern of the same or similar violent crimes. The key is showing that the criminal action that caused injury to the victim was foreseeable and that the property owner had a duty to minimize the risk for those lawfully on site.

One such case was recently before the U.S. Court of Appeals for the Fifth Circuit. In Jenkins v. C.R.E.S. Mgmt. LLC, plaintiff alleged an apartment complex where he worked and also resided had a duty to shield him from hard that was both unreasonable and foreseeable as a result of criminal acts committed by third parties. 

Plaintiff was employed as a “courtesy officer” at a Houston apartment complex. He was responsible for responding to resident requests for assistance, addressing reports involving criminal activity on site and contacting the police if necessary. The owner of the property compensated him in part by providing a rent-free apartment on the site.

One morning, around 3 a.m., plaintiff was awoken by someone pounding on the door. He assumed it was a resident in need of help, so he decided to open the door. There were two men in the hallway whom plaintiff did not recognize. One of the men raised his hand and pointed a handgun at plaintiff, who put his arms up in self-defense. Without any explanation or warning, the man shot him.

Plaintiff was struck in the elbow. He made the split-second decision to “play dead.” The men took off on foot, never attempting to enter the apartment. Police were called to investigate, but they never identified or found the two assailants.

The worker filed a premises liability lawsuit against the company. (Although he was employed by the company and normally, exclusive remedy provisions would prohibit legal action against an employer for injury, plaintiff was victimized in his capacity as a resident, while he was off-duty.)

Defendant company moved for summary judgment, arguing plaintiff hadn’t proven the assault against him was foreseeable in light of the criminal history at the apartment complex. In the 12 months before this happened, the complex had logged seven aggravated assaults, 14 residential burglaries, seven motor vehicle burglaries, six thefts, four auto thefts and one sexual assault. There was also a robbery-shooting that occurred 18 months prior to this incident.

The magistrate judge hearing the case placed limits on the foreseeability review to only those prior crimes that were violent, thus excluding all the thefts and burglaries. Based on this narrowed review, the judge granted defense motion for summary judgment, finding the crime wasn’t foreseeable.

It should be noted that while criminal conduct can be difficult to compartmentalize, courts have held that, for example, crimes like vandalism or theft aren’t necessarily enough to make a stabbing death foreseeable. So most reviews will be limited to violent crimes on or near the site during a specific time frame.

On appeal, plaintiff argued the trial court erred in designating burglaries as irrelevant in the foreseeability analysis. Specifically, residential burglaries, he argued, could foreshadow a violent crime. The appeals court agreed, and argued that when considering the 14 residential burglaries in conjunction with the other violent crimes, a material question of fact was raised as to whether the attack was foreseeable. The case was remanded for further proceedings.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Jenkins v. C.R.E.S. Mgmt. LLC, Jan. 26, 2016, U.S. Court of Appeals for the Fifth Circuit

More Blog Entries:

Wood v. Wood – Car Accident Lawsuit Naming Spouse as Defendant, Nov. 21, 2016, Montgomery Injury Lawyer Blog

These events can get rowdy, and there’s always a risk of possible injury. The University of Alabama has a host of tailgating rules to improve safety that include everything from  notices regarding proper electricity use on “The Quad” to limits when bringing dogs and other pets to such events. What they do not ban, unlike a growing number of schools: Beer kegs.

Among those schools corking the kegs on game day: Penn State, Arizona State, Michigan State, University of North Texas and The Ohio State University.

In Connecticut, Yale University has also banned kegs at tailgate events, an action that stems from a very specific – and tragic – event. In 2011, at the popular Yale-Harvard match-up, a fraternity brother driving a U-Haul packed with kegs on his way to tailgate with his “brothers” plowed into a row of pedestrians crossing the street. One of them, a 30-year-old artist and fashion designer, was killed. 

Recently, her family settled with the remaining defendants in their wrongful death lawsuit.

According to news reports and subsequent litigation, the incident happened outside the Yale Bowl, where students and fans were gathering outside the stadium for the traditional pre-game party. Using fraternity funds, the brothers had rented a U-Haul truck and then all pitched in to fill it with kegs they would consume at the tailgating party.

The brother who was driving the truck was impatiently making his way to the tailgate, but there were apparently lot of pedestrians in his way. He revved the engine in an effort to get them to move. But instead, the vehicle took off. The driver would later tell investigators he tried to hit the brake, but instead hit the gas pedal. The consequences were tragic. Several were injured- including a Harvard employee and a Yale student – and one woman was killed.

That prompted Yale to take action and ban kegs during tailgating events, and also limit commercial trucks on site to only those vendors pre-approved by the university. But the measure came to late for the victim’s family, who filed a lawsuit against a number of defendants, including:

• Yale
• U-Haul
• The national chapter of the fraternity
• The local chapter of the fraternity
• The 80 active members of the fraternity, including the driver

The school, U-Haul and other defendants had already settled out-of-court as of last year, but claims against the fraternity and its members were still pending. Now, both sides announce a settlement agreement for a confidential amount that did not require defendants to concede liability.

As for the driver, he passed a sobriety test but was still charged with reckless driving. He was allowed to enter a program that will allow him to emerge with a clean criminal record once he successfully completes probation and community service.

An attorney for the victim’s family said while they are relieved to finally put the litigation behind them, whatever is gained financially is not going to bring this vibrant young woman back.

It’s reason enough for other school administrators to re-think their permissive policies toward student binge-drinking on campus.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Fraternity settles lawsuit over fatal tailgating accident at Yale-Harvard football game, Jan. 8, 2016, Associated Press

More Blog Entries:

Alabama Supreme Court Affirms $15 Million Dram Shop Verdict, Dec. 20, 2016, Montgomery Accident Lawyer Blog

We are likely to see these numbers increase as bicycling grows in popularity in the state. The Alabama Bicycle Coalition reports there are dozens of popular trails throughout central Alabama, particularly around Tuscaloosa and Birmingham.

Most bicyclists fatally injured die because of a collision with a motor vehicle, usually by drivers who aren’t paying adequate attention. However, there are cases in which cyclists are killed or injured on unsafe trails. In these cases, recovery of damages in civil court will depend on the circumstances of the crash, but also on who maintains the trail – and why.

Although property owners are usually responsible for maintaining safe conditions on site, particularly when the public is invited, there are laws that protect both public and private owners that open their land for recreational use.

Alabama’s Recreational Use Statute is codified in the Code of Alabama, Title 35, Property Chapter 15, Article 1. Essentially, it states that if land owners allow their property to be used by the public for free for recreational purposes, they hold only the bare minimum liability for injuries caused by dangerous conditions on those lands. They can’t deliberately endanger people, but they probably won’t be held liable for general negligence.

As far as governments are concerned, these entities too are sometimes protected when they allow recreational land to be used under sovereign immunity statutes.

These provisions aren’t absolute, but it’s important to discuss your options with an experienced Montgomery injury lawyer before deciding best how to proceed.

One recent example of this was seen in a California case, Burgueno v. Regents of the Univ. of Calif. Here, a full-time student was bicycling on a path – owned and maintained by the university – home from night classes when he crashed his bike and was killed. There was no motor vehicle involved.

His parents alleged the accident was preventable and resulted from the negligence and recklessness of the school in failing to have proper signage, lighting, runoff areas or physical barriers that would block people from using it at night. In fact, it had been the site of numerous other bike accidents before this one.

The school countered that it was protected from litigation under a governmental immunity statute (as this is a public university) that was providing land to the public for recreational use. Although the government had statutorily waived its immunity in a number of cases where negligence results in injury, this was an exception.

Defense moved for summary judgment and the trial court granted it.

On appeal to the California Court of Appeals for the Sixth District, plaintiff argued the trail wasn’t a “recreational trail” as understood by the statute. Rather, it was a “major transportation corridor” that was designed for students going back and forth from campus. Although some recreational groups did use it, this was incidental and not the sole purpose. Further, they argued, the school did make money off the trail (a key provision of any recreational use statute) because it was used as a draw to prospective students.

However, the appeals court was not persuaded by this, finding that just because the trail was used for both recreational and non-recreational purposes did not mean immunity was precluded.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Burgueno v. Regents of the Univ. of Calif. , Jan. 13, 2016, California Court of Appeal, Sixth Appellate District

More Blog Entries:

Edwards v. Hanger – Auto Accident Statute of Limitations and Service Process, Dec. 30, 2016, Montgomery Injury Lawyer Blog

In Cisson v. C.R. Bard, both sides had appealed the final order, but for very different reasons.

Defendant appealed on the grounds certain evidence should have been kept from the jury and that the court should have allowed the defense to propose a special jury instruction. Also, defense argued the damage award was excessive. Plaintiff, meanwhile, appealed the split-recovery ruling, pursuant to Georgia law, that grants 75 percent of punitive damages to the state. 

The U.S. Court of Appeals for the Fourth Circuit affirmed on all grounds. That means plaintiff will receive about $680,000 in damages for her claim, which involved intense pain and suffering and a requirement of revision surgery after she was implanted with defendant’s transvaginal mesh.

These devices became common in recent years to treat pelvic organ prolapse and certain bladder disorders in women. Pelvic prolapse is when a pelvic organ (like the bladder) prolapses from its normal place in the lower belly and pushes against the walls of the vagina. This happens typically as a result of the muscles becoming weakened or stretched due to surgery or childbirth.

The problem is these devices used to treat the condition? At least insofar as C.R. Bard goes, evidence shows the material of which they were made was not safe for long-term implantation in humans – and internal memos proved executives knew it.

Women who have been affected usually have to undergo surgery to help relieve the chronic pain, and many are left scarred for life and endure ongoing loss of sexual feeling.

The Cisson case was the first of 70,000 that are pending against C.R. Bard in multi-district litigation. Other manufacturers, including Johnson & Johnson, are facing a similarly large number of cases.

One important thing the Fourth Circuit established in its ruling on this appeal was that the trial court was correct in prohibiting the company from using as a defense the fact that it complied with the U.S. Food & Drug Administration’s Section 510(k) medical device process. Defendant insisted its product was necessarily safe in the eyes of the FDA, and it should have been granted permission to tell the jury that. This position was supported via briefs submitted to the court by a number of pro-business groups.

However, the court rejected it. Basically, the fact that a device follows the FDA’s medical device process doesn’t necessarily mean the product is safe. All the process allows is clearance to sell the device based on the fact that it is substantially equivalent to another that’s already on the market. The fact that a product is approved under this process doesn’t mean it’s undergone any new regulatory requirements and it doesn’t mean it’s automatically safe.

The court determined compliance with the FDA’s procedure is “of little or no evidentiary value” in this product liability lawsuit.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Cisson v. C.R. Bard, Jan. 14, 2016, U.S. Court of Appeals for the Fourth Circuit

More Blog Entries:

Fasanello v. Ledyard – Child Injury and Statute of Limitations, Jan. 14, 2016, Montgomery Product Liability Lawyer Blog

Everything was going well, until the end of the party, when a 4-year-old boy, unsupervised at the time, swung the golf club and struck an 11-year-old girl in the lip, splitting her lip and knocking her front tooth out.

Now, a dozen years later, she has filed a personal injury lawsuit, accusing the hosts of the party of negligent supervision under premises liability law. She alleges the injury caused her to undergo 53 dental appointments over the years, a number of surgeries, pain and suffering and mental anguish. She can’t bite normally into food, had to give up on participation in music class (because she couldn’t blow into wind instruments without straining her lip) and has suffered teasing and bullying over the appearance of her mouth. 

Recently, defendants in Fasanello v. Ledyard asked a trial judge to toss the case, filed by the now-23-year-old plaintiff. Although the judge declined, defendants made a number of strong arguments for dismissal. He said questions of fact remained as to the level of supervision at the party and whether defendants were negligent.

Some interviewed by a journalist recently about the case, questioned how it was possible such a complaint could be presented so long after the fact. The answer lies in a provision of law that tolls the statute of limitations on negligence actions that involve minors.

As our Montgomery personal injury lawyers can explain, here in Alabama, Ala. Civil Code generally allows only 2 years from the date of injury for a claim to be filed. In cases of product liability, the timeline is even shorter  – just one year. Claims filed after that will be tossed. But there is a major exception when it comes to minors.

The law states that the limitation period starts to run on the minor’s 19th birthday. That means minors may have as long as until age 21 to file such action – even if the original incident occurred more than a decade earlier.

There is also a tolling provision (not applicable to this case) that allows lawsuits to be delayed until such time that the injury is discovered or should have been discovered. This is called the “discovery rule.”

Here, there are conflicting versions of what happened. All agree the hosts of the party were supervising the game when all the guests were participating earlier in the day. They also all agree no adult was watching at the time of the incident. Defendant’s daughter, then 12, says she watched as the plaintiff walked absentmindedly sucking on a ring pop toward the 4-year-old boy. Plaintiff got too close as the boy swung the club and was struck in the mouth.

Plaintiff, however, alleges she was waiting behind the young boy to play the game. Although she says she was standing far enough back, the boy took a “baseball-like swing” with the club, striking her forcefully in the mouth. She said she was covered in blood, her tooth was on the ground and a nerve was dangling from her mouth as she screamed in pain.

She debated whether to file the action, but says her medical expenses and ongoing problems following the injury warranted action.

Following denial of defendant’s motion for summary judgment, the case will now go to trial.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Judge allows lawsuit over injury at 2003 child’s birthday party, Jan. 2, 2016, By Charity Vogel, The Buffalo News

More Blog Entries:

Alabama Supreme Court Affirms $15 Million Dram Shop Lawsuit Verdict, Dec. 20, 2015, Montgomery Injury Lawyer Blog

In Birch v. Polaris Industries, Inc., plaintiff had asked trial court to amend the original complaint to add new legal theories and also request additional discovery. However, they did so after the deadlines for amending pleadings and for discovery had passed. Trial court rejected the motion and decided that, based on the unamended complaint, plaintiff’s case was weak. It granted defendant’s motion for summary judgment.

On appeal, the 10th Circuit found no judicial error. 

This case underscores the critical importance of hiring a dedicated, proactive product liability lawyer. It’s important to formulate a solid legal strategy early, and to stay abreast of key deadlines and requirements.

According to court records, the case started with the purchase of an off-road vehicle (similar to an all-terrain vehicle, but enclosed at the top), from a manufacturer dealership in 2011. Less than a month later, decedent and his son took the vehicle out for a spin. However, while they were driving, the vehicle hit a bump.

This caused the vehicle to tip onto its passenger side. This resulted in decedent’s hand getting stuck underneath the vehicle, which caused him injury.

This incident caused the vehicle’s roll-over protection structure, which protects passengers if the vehicle pitches over, to be destroyed.

Back at the dealership, which also had a repair center, decedent was quoted a price of $6,000 to fix the damage. He wasn’t happy with that price. He asked if the technician would be willing to fix it off the books. Because decedent was a friend of a friend, the technician, a master service dealer technician, agreed.

The technician ordered a new “roll cage” that was originally created for use on a 2008 model. This was a 2011, and the company had made substantial changes to the part since. The technician installed the part.

About a year later, decedent and a friend were riding the vehicle in a state park when, after going up a sand dune, the vehicle went airborne. It then pitched forward on the face of the dune. The repaired part buckled on impact, and decedent was pinned to the ground. He died a short time later.

His son and personal representative sued on behalf of his estate, alleging product liability, negligence and breach of warranty. Under state law in Utah, where this case was filed, all three of these allegations require a showing that the vehicle was defective at the time it was sold.

Defendant countered that because the vehicle’s rollover protection feature was altered by a cab frame that was both aftermarket and incompatible,  it wasn’t liable. Plaintiff argued the cab frame that replaced the part had been made by the manufacturer and was installed by a mechanic certified by the company.

The family argued the frame that was on the vehicle was made from cheaper steel that was cold-rolled and not strong enough to protect occupants. The company changed its design in 2011 to use thicker, hardened steel bars, and plaintiffs contended defendants hid the fact that this change in design was done to improve the strength and safety of the vehicle. Further, the company never warned the public that the old models might be unsafe.

But the problem was the arguments regarding failure to warn weren’t raised until after the known deadline.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:

Birch v. Polaris Industries, Inc., Dec. 23, 2015, U.S. Court of Appeals for the Tenth Circuit

More Blog Entries:

Edwards v. Hanger – Auto Accident Statute of Limitations and Service of Process, Dec. 30, 2015, Montgomery Product Liability Lawyer Blog